commander, of the question whether the party should be brought to trial, the opinion of the court will properly be as to whether further proceedings before a court-martial are called for in the case, with the reasons for the conclusions reached. Where no such view enters into the inquiry, but the court is convened to investigate a question of military right, responsibility, conduct, &c., the opinion will properly confine itself to the special question proposed and its legitimate military relations. A court of inquiry, composed as it is of military men, will rarely find itself called upon to express an opinion upon questions of a purely legal character. XVI, 389, July, 1865.

ONE HUNDRED AND TWENTIETH ARTICLE.

The proceedings of a court of inquiry must be authenticated by the signatures of the recorder and the president thereof, and delivered to the commanding officer.

ONE HUNDRED AND TWENTY-FIRST ARTICLE.

The proceedings of a court of inquiry may be admitted as evidence by a court martial, in cases not capital, nor extending to the dismissal of an officer: Provided, That the circumstances are such that oral testimony cannot be obtained.

372. While the proceedings of a court of inquiry cannot be admitted as evidence on the merits, upon a trial before a court martial of an offence for which the sentence of dismissal will be mandatory upon conviction; yet held that upon the trial of such offence, as upon any other, such proceedings, properly authenticated, would be admissible in evidence for the purpose of impeaching the statements of a witness upon the trial who-it was proposed to show-had made quite different statements upon the hearing before the court of inquiry. XLIII, 339, June, 1880.

ONE HUNDRED AND TWENTY-SECOND ARTICLE.

If, upon marches, guards, or in quarters, different corps of the Army happen to join or do duty together, the officer highest in rank of the line of the Army, Marine Corps, or militia, by commission, there on duty or in quarters shall command the whole, and give orders for what is needful in the service, unless otherwise specially directed by the President, according to the nature of the case.

In an exceptional case, that of the special court of inquiry authorized by Congress in the Joint Resolution of Feb. 13, 1874, the court was required to express an opinion not only upon the "moral," but upon the "technical and legal responsibility" of the officer for the "offences" charged. It is not irregular, but authorized, for a court of inquiry, in a proper case, to reflect, in connection with its opinion, upon any improper language or conduct of the accused, prosecuting witness, or other person, appearing before it during the investigation. Thus, the court of inquiry on the conduct of the Seminole war, adverted, in its opinion, unfavorably upon certain offensive and reprehensible language employed against each other by the two general officers concerned, the one in his statement to the court, and the other in his official communications which were put in evidence. See G. O. 13, Hdqrs. of Army, 1837. 2Compare G. O. 33, Dept. of Arizona, 1871.

See this ruling published, as adopted by the President, in G. C. M. O. 40, Hdqrs. of Army, 1880. See also, G. C. M. O. 88, Navy Dept., 1895.

ONE HUNDRED AND TWENTY-THIRD ARTICLE.

In all matters pertaining to the rank, duties, and rights of officers the same rules and regulations shall apply to officers of the Regular Army and to volunteers commissioned in, or mustered into said service, under the laws of the United States, for a limited period.

ONE HUNDRED AND TWENTY-FOURTH ARTICLE. Officers of the militia of the several States, when called into the service of the United States, shall on all detachments, courts-martial, and other duty wherein they may be employed in conjunction with the regular or volunteer forces of the United States, take rank next after all officers of the like grade in said regular or volunteer forces, notwithstanding the commissions of such militia officers may be older than the commissions of the said officers of the regular or volunteer forces of the United States.

ONE HUNDRED AND TWENTY-FIFTH ARTICLE.

In case of the death of any officer, the major of his regiment, or the officer doing the major's duty, or the second officer in command at any post or garrison, as the case may be, shall immediately secure all his effects then in camp or quarters, and shall make, and transmit to the office of the Department of War an inventory

thereof.

ONE HUNDRED AND TWENTY-SIXTH ARTICLE.

In case of the death of any soldier, the commanding officer of his troop, battery, or company shall immediately secure all his effects then in camp or quarters, and shall, in the presence of two other officers, make an inventory thereof, which he shall transmit to the office of the Department of War.

ONE HUNDRED AND TWENTY-SEVENTH ARTICLE. Officers charged with the care of the effects of deceased officers or soldiers shall account for and deliver the same, or the proceeds thereof, to the legal representatives of such deceased officers or soldiers. And no officer so charged shall be permitted to quit the regiment or post until he has deposited in the hands of the commanding officer all the effects of such deceased officers or soldiers not so accounted for and delivered.

373. This Article, in connection with the two preceding Articles, provides for the securing of the effects of deceased officers and soldiers, making inventory of the same, and accounting for them to the proper legal representative, &c. These Articles have special reference to cases of deaths of military persons while in active service in the field or at remote military posts, and their provisions apply only to such effects as are left by the deceased "in camp or quarters. An attempt by the commander, &c., to secure effects left elsewhere would not be within the authority here given, and might subject the officer to the liability of an administrator: such a proceeding would not therefore be advisable. Upon accounting to the duly qualified legal representative, as directed in the Article, the responsibility of the officer is

1 Compare Samuel, 659; Hough (Practice), 558.

discharged, and it remains for the representative to dispose of the property according to the law applicable to the case. XLIII, 266, March, 1880.

ONE HUNDRED AND TWENTY-EIGHTH ARTICLE.

The foregoing articles shall be read and published, once in every six months, to every garrison, regiment, troop, or company in the service of the United States, and shall be duly observed and obeyed by all officers and soldiers in said service.

ABSENCE WITHOUT LEAVE.

374. An unauthorized absence from the quarters only, as from 11 p. m. inspection, held not properly chargeable under the 32d Article. This article contemplates an absence from the soldier's "troop, battery, company or detachment "-an absence from the post or command. 133, May, 1891; 49, 100, 171, September, 1891.

47,

375. The statutory authority for the army regulation requiring that deserters restored to duty without trial shall make good time lost by desertion, is found in the 48th Article of War; but there is no such article or other statute with reference to absence without leave. Whether therefore a soldier can by a regulation alone be required to make good time lost by absence without leave is doubtful. 65, 338, June, 1894. The soldier by virtue of his contract of enlistment fails to earn and therefore is not entitled to pay and allowances accruing during the period of his unauthorized absence, but it is considered that in the present state of the law his retention in the service to make up time so lost cannot legally be authorized.1 Cards 1485, June, 1895; 1494, July, 1895; 3744, December, 1897.

376. Violations of the 33d Article of War should not be charged as absence without leave under the 32d Article. Card 2838, December, 1896.

377. Where an officer or soldier on his return from an unauthorized absence is, in consequence of his report of the facts and circumstances of such absence, not proceeded against by his proper commander for the military offence involved, but is by the latter placed upon full duty, such action, under the general custom of the service, may be pleaded as a good defence, if the officer or soldier be subsequently brought to trial for the unauthorized absence. II, 376, 391, May, 1863. 378. An enlisted man forfeits his pay and allowances during the

This view is not in accordance with the Army Regulations and practice. See A. R., 133 of 1895 (144 of 1901).

An absence without leave by an officer is laid under the 62d Article of War.

period of an absence without leave, as provided in army regulations. During such absence he renders no service and therefore earns neither pay nor allowances. The forfeiture is thus by operation of law and accrues independently of the result of a trial for the military offence involved in the unauthorized absence. One of the purposes of the muster and pay rolls is to show what service the soldier renders, and if they show that he has rendered none during a particular period by reason of an absence without leave, he is not entitled to pay and allowances during such period.' 36, 303, November, 1889; 57, 240, January, 1893; Card 1494, June, 1895. For an absence without leave of less than a day the soldier may of course be tried by court martial and sentenced to suffer a forfeiture, but such absence should not be noted on the muster and pay rolls. 47, 399, June, 1891.

ACCOMPLICE.

379. In general, where an accomplice offers and is admitted to testify upon the part of the government against an accused person, he is called to the stand under an implied promise that no proceedings will be taken against himself, and that the question of his pardon will be favorably considered, provided he makes a full disclosure of the facts within his knowledge; and this whether or not the accused be convicted by means of his evidence. So, where a party, who had thus been admitted to testify as witness, and had in good faith made a full and frank statement of the circumstances of the offence (of which, however, the accused was acquitted by the court), was himself subsequently brought to trial for the same act, and convicted and sentenced for his part in the same, recommended that his sentence be remitted by the President. XI, 590, and XIV, 259, March, 1865.

ACCOUNTABILITY OF OFFICER.

380. There is neither law nor justice in holding an officer of the army pecuniarily accountable to the United States where the U. S. has lost nothing by his act; or in holding him so accountable where, though there has been such loss, the same was not occasioned by his act. He may indeed be amenable to court-martial for some neglect of duty

T. S. Landers, 92 U. S., 77, 79.

See King v. Rudd, Cowper, 331; United States v. Lee, 4 McLean, 103; Whiskey Cases, 9 Otto, 594; People v. Whipple, 9 Cowen, 707; 1 Chitty Cr. L., 768–9; 1 Bishop Cr. Proc., § 1075-6, and notes; also Report (No. 352) of Committee on Judiciary of H. of Reps., 44th Cong., 1st Sess., March 31, 1876.

involved in the act and properly brought to trial therefor, but this is a wholly distinct liability. 46, 340, April, 1891.

381. A recruiting officer's clerk (a corporal), having access to blank transportation requests, filled out several in favor of a railroad company, forged thereto the name of the officer and disposed of the same. The forged requests were paid by a disbursing officer. Held, that the latter having paid out money of the United States on forged vouchers was alone legally accountable for the loss. If the officer who permitted access to the blank requests thereby committed a military offence, his amenability for such offence could be enforced only by means of a trial, conviction and punishment by court-martial. Whatever may be the legal effect of par. 35, Circular 7, A. G. O., 1892, the loss in question occurred prior to the promulgation of the circular. 56, 208, October, 1892.

382. Where an officer, having had entrusted to him by another officer a medal of honor, intended for and to be delivered to an enlisted man, gave such care to its safe-keeping as he gave to his own property, locking it up in his trunk for the purpose of transportation-held that he was not legally accountable for the loss of the medal in transitu. He was simply a gratuitous bailee of whom is required only the lowest degree of care and who is not liable for a loss which is not the result of gross negligence. 44, 382, December, 1890.

383. A person who, as an officer of the army, has been subjected under Sec. 1304, Rev. Sts., to a charge, against his pay, of the money value of military stores deficient or damaged for which he has been held accountable, cannot, after he has ceased to be such officer and has left the army, be relieved from such liability by the Secretary of War under that Section. For such relief he must have recourse to Congress. 65, 137, May, 1894.

"ACTING ASSISTANT" OR "CONTRACT" SURGEON.

384. A "contract" or "acting assistant" surgeon is not a military officer and has no military rank or status. He is amenable indeed to the military jurisdiction when employed with the army in the field in time of war (see SIXTY-THIRD ARTICLE); but he is in fact no part of the military establishment; is simply a civilian employed by the United States, under a special contract for his personal services as a medical attendant to the troops. When not serving with troops before the enemy he has no other relation to the military organization or the government than that established by the terms of his contract, made